7948 Federal Register / Vol. 72, No. 35 / Thursday, February 22, 2007 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 070209029–7029–01; I.D. 

112906A] 

RIN 0648–AU58 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Groundfish Observer 

Program 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS issues a proposed rule 

to amend regulations implementing the 

North Pacific Groundfish Observer 

Program (Observer Program). This 

action is necessary to avoid expiration 

of these regulations on December 31, 

2007, and ensure uninterrupted 

observer coverage in North Pacific 

groundfish fisheries. The proposed rule 

is intended to promote the goals and 

objectives of the Fishery Management 

Plan for Groundfish of the Bering Sea 

and Aleutian Islands Management Area 

and the Fishery Management Plan for 

Groundfish of the Gulf of Alaska 

(FMPs). 

DATES: Written comments must be 

received by March 23, 2007. 

ADDRESSES: Send comments to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian. Comments may be 

submitted by any of the following 

methods: 

• Mail: to P.O. Box 21668, Juneau, AK 

99802; 

• Hand delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK, 99802; 

• Fax: (907) 586–7557; 

• E-mail: 0648–AU58obs@noaa.gov. 

Include in the subject line of the email 

the following identifier: Observer 

Program Extension 0648–AU58. E-mail 

comments, with or without attachments, 

are limited to five megabytes; or 

• Webform at the Federal eRulemaking Portal: http:// 

www.regulations.gov. 

Copies of the Environmental 

Assessment/Regulatory Impact Review/ 

Initial Regulatory Flexibility Analysis 

(EA/RIR/IRFA) prepared for this action 

may be obtained from the mailing 

address above or by calling the 

Sustainable Fisheries Division, Alaska 

Region, NMFS, at 907–586–7228. 

FOR FURTHER INFORMATION CONTACT: 

Jason Anderson, 907–586–7228, or 

jason.anderson@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

NMFS manages the U.S. groundfish 

fisheries of the Bering Sea and Aleutian 

Islands Management Area (BSAI) and 

Gulf of Alaska (GOA) in the Exclusive 

Economic Zone (EEZ) under the FMPs. 

The North Pacific Fishery Management 

Council (Council) has prepared the 

FMPs pursuant to the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). Regulations implementing the 

FMPs appear at 50 CFR part 679. 

General regulations that pertain to U.S. 

fisheries appear at subpart H of 50 CFR 

part 600. 

Groundfish fisheries in the GOA and 

BSAI are managed under quotas set 

annually for groundfish species and for 

several other species that groundfish 

fishery participants are prohibited from 

retaining. Management programs under 

the FMPs allocate specific quotas among 

areas, seasons, gear types, processor and 

catcher vessel sectors, cooperatives, and 

individual fishermen. Annual quotas are 

based on NMFS stock assessments and 

Council recommendations. The Alaska 

Region NMFS is responsible for 

monitoring the catch of these quotas, 

and for closing the fisheries when 

quotas are reached. Stock assessments, 

quota monitoring, and management 

require an accounting for all groundfish 

and prohibited species catch, including 

discarded catch. 

Observer requirements for fisheries off 

Alaska have been in place since the 

mid–1970s, when the Magnuson Fishery 

Conservation and Management Act (reauthorized in 1996 as the MagnusonStevens Act) was implemented and 

NMFS began to monitor U.S. EEZ 

foreign groundfish fisheries. The 

Secretary of Commerce (Secretary) and 

the Council recognized that living 

marine resources cannot be effectively 

managed without the types of 

information that are either available 

only or most efficiently through an 

observer program. Therefore, when 

foreign vessel fisheries ended in 1991, 

the Council developed and the Secretary 

approved a domestic Observer Program 

that authorized the placement of 

observers on domestic fishing vessels 

and at shoreside processing plants 

participating in Alaskan groundfish 

fisheries. The domestic Observer 

Program was implemented through 

Amendment 18 to the GOA FMP and 

Amendment 13 to the BSAI FMP (54 FR 

50386, December 6, 1989, and 55 FR 

4839, February 12, 1990). Observer 

coverage requirements have remained 

mostly unchanged since approval of the 

program. 

The current Observer Program has an 

integral role in the management of 

North Pacific fisheries. The information 

collected by observers provides the best 

available scientific information for 

managing the fisheries and developing 

measures to minimize bycatch in 

furtherance of the purposes and national 

standards of the Magnuson-Stevens Act. 

Observers collect catch data used by 

managers for quota monitoring and 

management of groundfish and 

prohibited species, biological data and 

samples used by scientists for stock 

assessment analyses, information used 

by managers to document and reduce 

fishery interactions with protected 

resources, and information and samples 

used by scientists in marine ecosystem 

research. The Observer Program also 

provides information, analyses, and 

support in the development of proposed 

policy and management measures. 

Further, observers interact with the 

fishing industry on a daily basis and the 

Observer Program strives to promote 

constructive communication between 

the agency and interested parties. 

Observations are used by managers and 

enforcement personnel to document the 

effectiveness of the management 

programs of various entities, including 

NMFS, the U.S. Coast Guard, and the 

U.S. Fish and Wildlife Service. 

High quality observer data are a 

cornerstone of Alaska groundfish 

fisheries management. However, the 

quality and utility of observer data 

suffer due to the current structure of 

procuring and deploying observers. 

Under the current program, coverage 

levels vary with the size of the vessel or 

the quantity of fish processed. Vessel 

owners and operators choose when and 

where to carry observers, and fishery 

managers do not control when and 

where observers are deployed. To 

address these concerns, the Council 

directed NMFS to develop an alternate 

program structure. Since the early 

1990’s, the Council and NMFS have 

explored alternative program structures 

as part of three separate actions. 

However, the Council identified 

problems with each of these actions and 

none were adopted. While the Council 

was developing and considering options 

for an alternate program structure, the 

Council recommended, and the 

Secretary approved, several extensions 

of the Observer Program regulations. A 

thorough discussion of the history of the 

Observer Program, including past efforts 

to restructure and extend the Observer 

Program, is provided in the EA/RIR/ 


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Federal Register / Vol. 72, No. 35 / Thursday, February 22, 2007 / Proposed Rules 7949 

IRFA prepared for this action (see 

ADDRESSES), and is not repeated here. 

In October 2002, the Council tasked 

its observer advisory committee (OAC) 

to develop a problem statement and 

alternatives for restructuring the 

Observer Program. In April 2003, the 

Council adopted a suite of alternatives 

that contemplated restructuring the 

Observer Program in a stepwise 

approach, beginning in the GOA. 

However, as NMFS began evaluating 

these alternatives, it became apparent 

that certain operational and data quality 

issues would be difficult to resolve in a 

revised program under which NMFS 

contracted directly with observers for 

observer services in the GOA, but 

retained the current system for 

procuring observer services in the BSAI. 

From December 2003 through June 

2005, the Council refined the suite of 

alternatives, and in June 2005 adopted 

the current alternatives for analysis. 

These alternatives include options to 

restructure the Observer Program for all 

groundfish and halibut vessels fishing 

in the GOA only, for halibut vessels and 

certain sectors fishing in both the GOA 

and BSAI, and for all groundfish and 

halibut fisheries. Shoreside and 

stationary floating processors were 

included under each alternative 

depending on their location and 

management program. In addition to the 

‘‘no-action’’ alternative under which the 

Observer Program would expire, the 

Council also asked staff to analyze an 

alternative that would remove the 

December 31, 2007, expiration date and 

continue current observer coverage 

regulations without an expiration date. 

While the Council intended to adopt 

a preferred alternative by January 1, 

2008, several issues arose during the 

course of analysis of the alternatives 

that has made this difficult. First, due to 

uncertainty about the applicability of 

overtime pay provisions of the Fair 

Labor Standards Act to contracted 

observers, staff were unable to 

adequately analyze observer costs under 

any of the restructure alternatives. 

Second, the Research Plan authority to 

assess a fee for observer coverage could 

not be exclusively applied to a subset of 

the North Pacific groundfish fisheries 

vessels. Therefore, all the action 

alternatives except Alternative 2 

(extension of the current program) 

required new statutory authorization for 

fee collection from a portion of the fleet 

or to implement different fee 

mechanisms for different sectors, as 

were considered in the analysis. 

Because observer costs cannot be 

adequately calculated and the 

uncertainty that Congress would 

authorize fee collection, NMFS 

recommended that the Council adopt 

Alternative 2 as its preferred alternative. 

The Council concurred and adopted 

Alternative 2 at its February 2006 

meeting. The Council also amended the 

problem statement to reflect that, while 

Alternative 2 does not address most of 

the issues in the problem statement, it 

ensures Observer Program viability, and 

the continued collection of information 

necessary to manage the North Pacific 

fisheries. While the costs of the 

restructuring alternatives cannot be 

adequately calculated at this time, the 

analysis prepared for this action 

includes restructuring alternatives to 

provide context to the Council’s 

adoption of Alternative 2. 

Expiration of the Observer Program 

would result in significant costs to 

groundfish fishery participants. Without 

data collected by observers, NMFS 

would be forced to adopt a much more 

conservative approach towards 

managing the groundfish fisheries of the 

GOA and BSAI. Such an approach could 

lead to early fisheries closures because 

there would be no observer data for total 

allowable catch (TAC) and prohibited 

species catch limit calculations. NMFS 

would likely rely on more population 

models to generate allowable biological 

catch and TAC recommendations. In 

addition, failure to maintain a 

groundfish observer program in the 

North Pacific would violate the terms of 

a variety of statutes, including the 

Endangered Species Act (ESA). The ESA 

requires observer coverage as a 

reasonable and prudent measure for 

certain management actions. These are 

non-discretionary measures under 

current biological opinions and are 

prescribed under the incidental take 

statements for endangered marine 

mammals, salmon, and seabirds. 

Also in June 2006, the Council 

decided it would consider a new 

amendment proposing restructuring 

alternatives for the Observer Program 

when (1) legislative authority is 

established for fee-based alternatives; (2) 

the cost issues described above are 

clarified (by statute, regulation, or 

guidance) to allow estimated costs 

associated with the fee-based 

alternatives; or (3) the Council responds 

to changes in conditions that cannot be 

anticipated now. 

On January 12, 2007, the President 

signed the Magnuson-Stevens Fishery 

Conservation and Management 

Reauthorization Act (Pub. Law No. 109–

479). The reauthorized MagnusonStevens Act includes language that 

would appear to allow the Council to 

adopt a fee collection program as 

considered in the analysis. However, the 

exact nature of the fee program 

authorized by the Magnuson-Stevens 

Act must be determined, the Council 

must consider a new amendment to 

restructure the current Observer 

Program, and NMFS must undergo 

rulemaking to implement a new 

Observer Program. Therefore, 

implementing a fee collection and 

restructured Observer Program prior to 

the December 31, 2007, expiration date 

would be difficult. Additionally, the 

observer cost issues described above 

remain unresolved. 

Revisions to Observer Program 

Regulations 

For the reasons described above, 

NMFS proposes to remove the 

December 31, 2007, expiration date from 

the heading of 50 CFR 679.50 and from 

regulations at § 679.50(j)(1)(vi). The 

current Observer Program would 

continue until the Council recommends 

and the Secretary approves and 

implements further action to amend the 

program. Continuation of the current 

Observer Program is necessary to 

prevent interruption of many current 

management programs. 

Classification 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

NMFS prepared an IRFA as required 

by section 603 of the Regulatory 

Flexibility Act. The IRFA describes the 

economic impact this proposed rule, if 

adopted, would have on small entities. 

A description of the action, why it is 

being considered, and the objectives and 

legal basis for this action are contained 

in the preamble and are not repeated 

here. A copy of the IRFA is available 

from NMFS (see ADDRESSES). A 

summary of the analysis follows. 

This proposed rule would extend the 

effective date of regulations governing 

the Observer Program beyond December 

31, 2007, the current expiration date. 

Extending the Observer Program beyond 

December 31, 2007, is necessary for 

uninterrupted continuation of many of 

the current management programs. The 

entities that would be directly regulated 

by this proposed action are groundfish 

and halibut harvesters and processors of 

the BSAI and GOA EEZ. These entities 

include the halibut vessels, groundfish 

catcher vessels, groundfish catcher 

processor vessels, and shoreside 

processors active in these areas. It also 

includes organizations to which direct 

allocations of groundfish are made, such 

as the BSAI community development 

quota (CDQ) groups and the American 

Fisheries Act (AFA) fishing sectors. 

The IRFA identified the following 

small entities that would be impacted 


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7950 Federal Register / Vol. 72, No. 35 / Thursday, February 22, 2007 / Proposed Rules 

by this rule. Based on 2005 data, 23 of 

the 87 catcher/processors active in the 

North Pacific groundfish fisheries 

would be considered small entities. All 

five North Pacific observer provider 

companies and the six CDQ groups 

would be considered small entities. 

Estimates of the number of shoreside 

processors that are small entities 

include all Alaska processors that 

reported processing groundfish to 

NMFS in 2002. Due to insufficient 

ownership and affiliation information, it 

is not possible, at this time, to 

determine how many of the 73 

shoreside processors qualify as small 

entities. However, at least eight 

shoreside processors would be 

considered large entities because of 

American Fisheries Act (AFA) 

affiliations. Finally, 807 groundfish and 

halibut catcher vessels have gross 

revenues less than $4 million, and 

would be considered small entities. 

Alternative 1 is the no action 

alternative. Under this alternative, the 

current Observer Program would 

continue to be the only system under 

which groundfish observers would be 

provided in the BSAI and GOA 

groundfish fisheries. Regulations 

authorizing the current program expire 

at the end of 2007. 

No additional recordkeeping and 

reporting requirements are associated 

with this action. 

Alternative 2 is the preferred 

alternative, and would extend the 

existing program. Under this alternative, 

the 2007 sunset date for the existing 

program would be removed and the 

program would be extended indefinitely 

with no changes to the overall service 

delivery model until the Council took 

further action. 

Alternative 3 would restructure the 

Observer Program for GOA groundfish 

and all halibut fisheries, while BSAI 

groundfish fisheries would be 

administered under the current system. 

A new ex-vessel value fee program 

would be established to fund coverage 

for GOA groundfish vessels, GOA-based 

processors, and halibut vessels 

operating throughout Alaska. 

Regulations that divide the fleet into 

zero, 30 percent, and 100 percent 

coverage categories would no longer 

apply to vessels and processors in the 

GOA. Fishermen and processors would 

no longer be responsible for obtaining 

their own observer coverage. Rather, 

NMFS would determine when and 

where to deploy observers based on data 

collection and monitoring needs, and 

would contract directly for observers 

using fee proceeds and/or direct Federal 

funding. 

Alternative 4 would restructure the 

Observer Program for all fisheries with 

coverage less than 100 percent. All 

vessels and processors assigned to Tiers 

3 and 4 would participate in the new 

program throughout Alaska and pay an 

ex-vessel value based fee. In general, 

this alternative would apply to all 

halibut vessels, all groundfish catcher 

vessels less than 125 ft (38.1 m) in 

length overall and all non-AFA 

shoreside processors. All vessels and 

processors assigned to Tiers 1 and 2 

(100 percent or greater coverage) would 

continue to operate under the current 

‘‘pay-as-you-go’’ system throughout 

Alaska. 

Alternative 5 would restructure the 

Observer Program for all groundfish and 

halibut fisheries off Alaska. This 

alternative would establish a new feebased groundfish observer program in 

which NMFS has a direct contract with 

observer providers for all GOA and 

BSAI groundfish and halibut vessels. 

Under this alternative, vessels with 100 

percent or greater coverage requirements 

would pay a daily observer fee and 

vessels with coverage requirements less 

than 100 percent would pay an exvessel value based fee. 

As noted in the preamble above, 

Alternative 1 would result in significant 

costs to the fleet. 

The impacts to small entities of the 

Alternatives 2 through 5, expressed as a 

percentage of the ex-vessel value of 

groundfish and halibut landed, are 

presented in the EA/RIR/IRFA prepared 

for this action and are summarized here. 

Current observer costs expressed as a 

percentage of ex-vessel landed catch 

value can be considered a reasonable 

estimate of the costs to each sector of 

the fleet under Alternative 2 (rollover of 

the existing program). In the BSAI 

management area for the years 2000 

through 2003, these costs averaged 2.54 

percent for catcher/processors, 1.49 

percent for catcher vessels, and 0.89 

percent for all processors, including 

motherships. In the GOA management 

area for these same years, these costs 

averaged 1.11 percent for catcher/ 

processors, 1.71 percent for catcher 

vessels, and 0.65 percent for all 

processors. 

Although adoption of Alternative 3, 4 

or 5 would require new statutory 

authority that currently does not exist, 

adoption of any of these alternatives as 

presented in the EA/RIR/IRFA would 

require selection of a low, middle, or 

high ex-vessel fee percentage. Estimated 

costs expressed as a percentage of exvessel value of groundfish and halibut 

landings for the low, middle, and high 

endpoint options for Alternative 3 are 

0.52 percent, 0.70 percent, and 1.05 

percent, respectively. Estimated costs in 

terms of a percent of ex-vessel value for 

Alternative 4 are 0.69 percent, 0.83 

percent, and 1.15 percent. Finally 

estimated costs in terms of a percent of 

ex-vessel value for Alternative 5 are 0.69 

percent, 0.83 percent, and 1.15 percent. 

The analysis did not reveal any 

Federal rules that duplicate, overlap, or 

conflict with the proposed action. 

List of Subjects in 50 CFR Part 679 

Alaska, Fisheries, Reporting and 

recordkeeping requirements. 

Dated: February 15, 2007. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, NMFS proposes to amend 50 

CFR part 679 as follows: 

PART 679—FISHERIES OF THE 

EXCLUSIVE ECONOMIC ZONE OFF 

ALASKA 

1. The authority citation for part 679 

continues to read as follows: 

Authority: 16 U.S.C. 773 et seq.; 1540(f); 

1801 et seq.; 1851 note; 3631 et seq. 

2. In § 679.50, paragraph (j)(1)(vi) is 

removed and the section heading is 

revised to read as follows: 

§ 679.50 Groundfish Observer Program. 

* * * * * 

[FR Doc. E7–3019 Filed 2–21–07; 8:45 am] 

BILLING CODE 3510–22–S 


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